[Cites 19, Cited by 0]
Gauhati High Court
CRL.A(J)/89/2022 on 6 April, 2026
Author: Nelson Sailo
Bench: Nelson Sailo
Page No.# 1/32
GAHC010159992022
2026:GAU-AS:5035-
DB
REPORTABLE
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
Principal Seat
Crl. A. (J) 89/2022
Atowa Munda
S/O. Lt. Surkho Munda,
Vill. Orangajuli, P.S. Panery,
Dist. Udalguri.
----- Appellant
- VERSUS -
The State of Assam
-----Respondent
Advocate for the appellant :- Mr. A. Tewari.
Advocate for the respondent :- Ms. B. Bhuyan, Addl.P.P
BEFORE
HON'BLE MR. JUSTICE NELSON SAILO
HON'BLE MR. JUSTICE PRANJAL DAS
Date on which judgment is reserved: 12.02.2026
Date of pronouncement of judgment: 06.04.2026
Whether the pronouncement is of the N/A
Operative part of the judgment :
Whether the full judgment has been
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Pronounced :Yes
JUDGMENT & ORDER (CAV)
(Mr. Pranjal Das, J.)
1. Heard Mr. A. Tewari, learned Amicus Curiae appearing for the
appellant. Also heard Ms. B. Bhuyan, learned Addl. P.P. appearing for the
State respondent.
2. The instant criminal appeal has been preferred from jail by the
convict appellant Atowa Munda against the judgment and order dated
07.06.2022 passed by the learned Addl. Sessions Judge, Udalguri in
Sessions Case No. 70 of 2019, whereby, the appellant has been convicted
under Section 302/436 IPC and sentenced to undergo imprisonment for
life and a fine of Rs. 5000/- (in default S.I for 3 months) for the conviction
under Section 302 IPC; sentenced to imprisonment for 10 years and a fine
of Rs. 5000/- (in default S.I for 3 months) for his conviction under Section
436 IPC. The sentences were directed to run concurrently.
3. The prosecution case in the trial in brief was that on 22.01.2019
ejahar was lodged by one Dominic Orang at the Panery police station
stating that on the same day at around 3 am Atowa Munda committed
murder of his wife Rejina Munda by stabbing her on her neck with a dao
and thereafter, he set fire to the house and all the properties inside the
house were destroyed by the fire.
4. On the basis of the FIR, Panery P.S. case No.09/2019 was registered
under Sections 302/436 IPC and investigation started, upon completion of
which charge-sheet were submitted against the appellant under Sections
302/436 IPC. After completion of other formalities such as committal etc.,
charges were framed against the appellant under Sections 302/436 IPC.
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However, the appellant denied the charges upon the same being read over
to him and claimed to be tried, whereupon the trial started.
5. During the trial, the prosecution examined 11(eleven) witnesses
where after the appellant was examined under Section 313 Cr.P.C. No
evidence was adduced from the defense side.
6. Mr. A. Tewary, the learned Amicus Curiae submits that there are
infirmities in the prosecution case and that the same requires interference
in this appeal. He submitted that the testimony of PW-3 states that dao
was seized upon being found by the side of the dead body but the
testimony of PW-11 states that dao was lying on the courtyard. It is
submitted that when the alleged extrajudicial confession was made by the
appellant, police was present and therefore, the same would not be
admissible. It is submitted that in any case, any extrajudicial confession to
be used for conviction requires corroboration, which is not there in the
instant case.
7. In support of his contentions, the learned legal aid counsel cites the
following decisions:-
(i) Annes Vs. The State of Govt. of NCT [2024] 6 S.C.R. 164.
(ii) Aghnoo Nagesia Vs. State of Bihar, 1965 0 Supreme (SC) 151.
(iii) Motilal Gorh @ Lity and Anr. Vs. State of Assam and Anr. 2019
0 Supreme (Gau) 697.
(iv) Perumal Rana @ Perumal Vs. State, Rep. by Inspector of
Police 2024 0 Supreme (SC) 6.
(v) State of Andhra Pradesh Vs. Gangula Satya Murthy 1996 0
Supreme (SC) 1933.
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(vi) Pawan Kumar Chourasia Vs. State of Bihar [2023] 2 S.C.R.
875.
8. On the other hand, Ms. B. Bhuyan, the learned Addl. P.P. supports
the impugned judgment and order. It is submitted that there is no infirmity
in the extrajudicial confession as revealed from the testimony of PW-4. It
is submitted that the evidence of PW-4 and PW-5 lend sufficient strength
to the prosecution case. It is submitted that the weapon of offence has
been duly seized, lending support to the prosecution case regarding the
guilt of the accused. The prosecution submits that the appeal is devoid of
merit and should be dismissed.
9. In support of her contentions, the learned Additional P.P. cites the
following decisions:-
(i) Sahedevan and Another Vs. State of Tamil Nadu (2012) 6 SCC 403.
(ii) Panneerselvam Vs. State of Tamil Nadu (2008) 17 Supreme Court
Cases 190.
(iii) Paniben (SMT) Vs. State of Gujarat (1992) 2 Supreme Court Cases
474.
10. We have perused the impugned judgment, the grounds of appeal,
the depositions of the witnesses adduced at the trial, the exhibited
documents and other relevant materials. We have considered the
submissions of the learned counsel for the appellant and the learned
Additional Public Prosecutor.
11. As already stated above, the appellant was charged during the trial
for offences under sections 302 and 436 IPC. He was alleged to have
committed murder of his wife Rejina Munda and set fire to the dwelling
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house of the accused. There are no eyewitnesses to the occurrence and
the case is based on circumstantial evidence.
12. The law on proof in a criminal trial based on circumstantial evidence
are well settled starting from the cardinal principles laid down in the
foundational judgment of Sharad Birdichand Sharda v. State of
Maharashtra, (1984), 4 SCC 116. The learned trial court referred to
the principles enunciated in the said judgment. Para 153 of the said
judgment may be reproduced, which have encapsulated the five golden
principles :-
"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an accused
can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not "may be" established.
There is not only a grammatical but a legal distinction between "may be
proved" and "must be or should be proved" as was held by this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 :
1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were
made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the accused must be and
not merely may be guilty before a court can convict and the mental
distance between 'may be' and 'must be' is long and divides vague
conjectures from sure conclusions."
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not be
explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
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(4) they should exclude every possible hypothesis except the one to
be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act must
have been done by the accused."
13. During the trial, in the impugned judgment, the learned trial court in
paragraph 30 of the judgment has held that the prosecution was able to
prove the following incriminating circumstances against the accused. (ii)
The death of the accused Rejina Munda due to ante-mortem cut injury on
her neck. (ii) Burning of the house of the accused immediately after the
death of his wife. (iii) Disappearance of the accused from his house for
some time soon after the alleged occurrence. (iv) Recovery of the weapon
used by the accused while causing death of his wife. (v) The accused
confessing his guilt before the villagers who gathered at his house soon
after the occurrence. (vi) Failure of the accused to provide any reasonable
explanation for the occurrence.
14. In this context, the learned trial court also invoked the provisions of
section 106 of the Indian Evidence Act regarding the failure of the accused
to offer an explanation and also referred to the decision in this regard
rendered in State of Rajasthan v. Kashi Ram reported in (2006) 12
SCC 254.
15. Now, in this appeal again, it remains to be determined as to whether
the aforesaid finding of the learned trial court about proof of the above
mentioned circumstances is correct or otherwise. The autopsy doctor who
conducted post-mortem on the dead body of the deceased has adduced
evidence during the trial as PW-1. He is Dr. Arup Kumar Kalita who
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testified that on 22-01-2019, he was working in Udalguri Civil Hospital and
on that day, he conducted post-mortem examination on the dead body of
Rejina Munda, 40-year-old female, in connection with Paneri P.S. Case No.
9 of 2019. The dead body was brought by UBC/338 Rinku Das. It may be
mentioned herein that the incident is stated to have taken place on 22-01-
2019 around 3 A.M. in the wee hours of the morning. PW-1 stated that
upon examination of the dead body during the autopsy, he found one cut
injury over the right side of neck, 7cm x 6cm x 2cm. He also found right-
sided carotid vessel cut and haemorrhage seen over the cut surface. In his
opinion regarding death, he stated that death was due to haemorrhagic
shock following ante-mortem cut injury and time since that was 9-12
hours. He proved the post-mortem report as Exhibit-1 and his signature
thereon as Exhibit 1(1). Cross-examination was declined.
16. Thus, the medical evidence clearly indicates that the death of the
deceased was a homicidal death due to ante-mortem cut injury and the
time of 9-12 hours indicated by the medical evidence is compatible with
the approximate time of the incident at 3 a.m. in the morning on 22-01-
2019. Therefore, the learned trial court did not err in holding that the
death of the appellant's wife was due to ante-mortem cut injury and
haemorrhage.
17. The incident is stated to have taken place in the house of PW-2
Dominic Orang in which the appellant and his wife were stated to have
been staying at the time of the incident. In his testimony, PW-2 who is
also the informant of the case stated that the appellant is his relative and
the incident took place on 22-01-2019 and that at the time of the incident,
he was staying at another place looking after his cultivation and had asked
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the appellant to stay in his original residence in Line No. 20, House No. 55
at Orangjuli, TE. On the day of the incident, at 4 P.M., he received a phone
call from his next-door neighbour Rajen at the place where he was staying
at that time that there was a murder in his residence and his house was
burning. Upon hearing this, he immediately rushed to his original house on
his scooty along with Rajen and upon reaching the spot saw his entire
house gutted with fire and the dead body of Rejina Munda, wife of the
appellant, was found lying on the courtyard of the house with a cut injury
on the neck. Therefore, PW-2 has also stated about witnessing a cut injury
on the neck of the victim as revealed by the medical evidence. PW-2
proved the FIR as Exhibit-2 and his signature as Exhibit 2(1). He admitted
in cross-examination that he did not see the incident and he denied the
suggestion that the appellant was not responsible for committing the
offence.
18. PW-3, Robin Gowala, is a co-villager of the appellant and he testified
that at the time of the incident he was in his residence, whereupon he
heard from neighbours that the appellant after killing his wife set the
house on fire and upon hearing this he immediately rushed to the house
of the appellant and saw dead body of the deceased lying on the bed with
cut injury on her neck with bleeding and also saw fire on the roof of the
house. PW-3 stated that he along with others put off the fire and informed
the police. He stated about the incident having taken place around 2.30 to
3.00 A.M. From the testimony of PW-3 also, it emerges that he saw cut
injury on the neck of the victim with bleeding, thereby lending
corroboration to the testimony of PW-2 in this regard and also the medical
evidence. He has also testified about the incident having taken place
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around 2.30 to 3.00 A.M. From the testimony of PW-3 also, it emerges
that he saw fire on the roof of the house, thereby lending corroboration to
the testimony of PW-2.
19. The testimony of PW-4, Paresh Ram Munda, is also important as he
is a next-door neighbour of the appellant. He has also stated about the
incident having taken place on 22-01-2019 around 3.00 A.M. He stated
that at that time he was sleeping, whereupon he heard one Atowa Kaucha
shouting fire-fire, and whereupon he got up and ran towards the house of
the appellant and saw fire in his house, which was gradually progressing
towards the house of the witness as well. He testified that he climbed on
the roof of the house and put off the fire by throwing water and in the
meantime, some other persons also came and helped in extinguishing the
fire. Later, a fire brigade also came. PW-4 further testified that upon
entering the house of the appellant along with neighbours, wife of the
appellant was brought out from inside the house with cut injury on her
neck and she was dead by this time.
In cross-examination, he admitted that he had personally not seen
who set fire to the house or cut the throat of the wife. Thus, from the
testimony of PW-4 also, it emerges that he saw fire on the house of the
appellant, the cut injury on the neck of the deceased wife of the appellant.
And he also testified about the incident having taken place around 3.00
A.M. The person named Atowa Kaucha, referred to in the testimony of
PW-4, has also deposed in the trial as PW-5. He stated that he knew the
appellant as well as the deceased.
20. From his testimony also, it emerges that the incident took place at
around 3.00 A.M. on 22-01-2019. He is also an eyewitness to the fire on
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the house of the appellant - in as much as he testified that at around 3.00
A.M. while he came out of the house to answer the call of nature, he saw
fire engulfing the house of the appellant and shouted fire-fire, thereby
lending corroboration to the testimony of PW-4 in this regard about PW-5
shouting fire-fire. He testified that subsequently the neighbors came and
thereafter, the dead body of Rejina Munda, wife of the appellant was
brought out from the inside the house with a cut injury on her throat. PW-
5 also assisted in putting out the fire. Thus, PW-5 has also corroborated
the prosecution evidence regarding the incident having taken place around
3.00 A.M. and the house of the appellant being on fire at that time. And
he has also stated about the cut injury on the throat of the deceased.
21. One Bashil Champia testified as PW-6. He has stated the time of the
incident as 7.00/7.30 P.M. testifying that he was informed that the house
of the appellant was burnt. Thereupon, he immediately rushed to the
house and found the residential house of the appellant engulfed by fire,
which was subsequently controlled by pouring water. He testified that
subsequently the house was searched, whereupon the wife of the
appellant was found lying with cut injury on her neck. This part of the
testimony of PW-6 has remained unshaken in his cross-examination also.
22. One important aspect that has emerged from the testimony of PW-6
in his cross-examination is that one part of the house of the appellant was
occupied by one person named Shanti. But unfortunately, the said person
named Shanti was not examined during the investigation, nor adduced as
a prosecution witness. From the testimony of PW-6 also, the fire on the
house of the appellant and the cut injury on the neck of the victim
emerges.
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23. However, PW-6 has stated the time of the incident as 7.00/7:30 P.M.
in the evening, unlike the other witnesses discussed above, who have
consistently stated about the time of the incident to be around 3 A.M. on
22-01-2009.
24. PW-7 Goga Munda stated about the incident taking place on 22-01-
2019. He has also testified about the fire in the house of the appellant
being controlled with the help of water tanker of the tea garden. He has
stated about the dead body of the wife of the appellant lying inside the
burnt house and it was taken out. However, PW-7 has not stated about
the cut injury on the neck of the victim.
25. Atanu Seal, who was a senior welfare officer of the Orangajuli Tea
Estate at the relevant time, adduced evidence as PW-9, during which he
testified that he was informed by Chowkidar about fire in one house in line
No. 2, whereupon he went there. He stated that the actual owner of the
house was Dominic Orang, but his relative Atowa Munda was staying
there, thereby lending corroboration to the testimony of PW-2 Dominic
Orang in this regard. He stated about seeing the burnt house where the
fire was subsequently put off and also about seeing the dead body inside
the burnt house. He stated about going to the place of occurrence around
9 P.M. In cross-examination, he stated that the house was burning from
the backside and half of the house was burnt.
26. PW-11 SI Ibrahim Khalil Ullah, the investigating officer of the case in
his testimony, has also stated about receiving information about the
murder of Rejina Munda by her husband Atowa Munda and he is setting
the house on fire. He also testified about seizing half-burnt materials from
the place of occurrence by the seizure list which he has exhibited.
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27. Thus, we find that from the testimony of the above witnesses, it is
proved that at the time of the incident, the house of the appellant was set
on fire and it was burning which was subsequently put off by the people.
All the witnesses have consistently stated about fire in the house of the
appellant. Except for PW-8, PW-9 Atanu Seal and PW-11 Ibrahim Khalil
Ullah who came subsequently and saw the burnt house.
28. The other witnesses in this regard being PW-2, PW-3, PW-4, PW-5,
PW-6 and PW-7 all have testified regarding seeing the house burning and
that it was subsequently put off with the help of people and fire brigade of
the garden. PW-2, PW-3, PW-4, PW-5, PW-6 have all consistently testified
about seeing cut injury on the neck of the deceased wife of the appellant.
This testimony of these witnesses does corroborate the medical findings
about a significant cut injury on the neck of the victim as testified to by
the autopsy doctor being PW-1 Dr. Arup Kr. Kalita.
29. Amongst these witnesses while PW-2, PW-3, PW-4, PW-5 have
stated about the incident having taken place around 3 A.M. But PW-2 has
stated about going with his neighbour Rajen to the place of occurrence at
4 P.M. and noticing the fire. PW-6 has stated about the time of the
incident to be around 7/7.30 P.M. While PW-7 has stated about the
incident having taken place in the evening of 22.01.2019. Thus, some
discrepancy has emerged with regard to the time of the incident from the
testimony of these witnesses with one set testifying about having taken
place, in the wee hours around 3 A.M.; while two other witnesses have
stated about or indicated about the incident having taken place in the
evening. It may be mentioned that in the FIR dated 22.01.2019 by PW-2
the time of the incident has been mentioned as around 3 A.M. and PW-2
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the informant has also stated the same in his testimony during the trial.
30. On the basis of this evidence, we find that the finding of the learned
trial court that the burning of the house of the appellant, around the time
of the death of his wife has been by and large proved from the testimony
of the witnesses.
31. The learned trial court in the impugned judgment has relied on the
purported extrajudicial confessions made by the appellant before PW-2,
PW-4, PW-5, PW-6. With regard to the aspect of such confession being
made in the presence of the police, the learned Trial court has tried to
differentiate the issue and held that, it has been proved by the evidence
that the appellant also made such confession before the arrival of the
police and that he again made confession on those lines in the presence of
the police. Therefore, this aspect of the determination by the learned trial
court has to be adjudicated.
32. For this purpose, we go to the testimony of PW-2 Dominic Orang,
who is also the informant of the case and in whose house the incident
took place and where the appellant and his wife were stated to be staying
at the time of the incident. In examination-in-chief, PW-2 stated that the
appellant confessed before police and public that he committed the crime.
Therefore, the aforesaid extrajudicial confession revealed from the
testimony of PW-2 would be hit by section 26 of the Indian Evidence Act,
which bars the admissibility of a confession made, while the accused is in
custody of the police, unless it is made in the immediate presence of a
Magistrate.
33. From what emerges from the testimony of PW-2, though it is not
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explicitly stated at that time the appellant was in the custody of the police,
but nevertheless, the presence of the police along with the public when
the appellant made the purported extrajudicial confession, would still
make such confession remaining under the cloud of section 26 and it will
be difficult to accept such extrajudicial confession revealed from the
testimony of PW-2.
34. PW-4, Paresh Ram Munda, has also stated about an extrajudicial
confession of the appellant in his testimony. He stated that after
committing the incident, the appellant fled away. But around 5 AM in the
morning, when people started gathering in his house, he came and
confessed in presence of PW-4 as well as in the presence of other villagers
like Sankar driver, Birsingh Sangha, Junaas Tirki, Raju Munda, Jakariya,
Jogyan and Robin Gwala - that he cut the throat of his wife with Kalam
Kothari and thereafter, he fled away by setting the house on fire.
In cross-examination, on one hand, he says that police reached the
spot after 25 minutes of the accused coming back to his house and on the
other hand, he also states in cross-examination that when the accused
made the confession before the public, police personnel was also present,
thereby bringing in a contradiction in his testimony regarding the said
extrajudicial confession. PW-4 does not state that the appellant made two
confessions, one before the public when police was not present and
another when police was present. Rather, when he stated about such
extrajudicial confession in his examination-in-chief, he has not mentioned
the presence of police and in cross-examination, he states about police
coming to the place 25 minutes later. However, in cross-examination, he
makes the unqualified statement that when the appellant made the
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confession before the public, police personnel was also present. Therefore,
the extrajudicial confession revealed from the testimony of PW-4 is also hit
by section 26 of the Evidence Act.
35. Similarly, PW-5 Atowa Kaswa, who was also an eyewitness to the
fire in the house of the appellant, testified that accused confessed before
the public about killing his wife. However, in cross-examination, he
negates that testimony by saying that when the accused made the
confession of killing his wife and setting his house on fire, police was also
present, thereby inviting the restriction under section 26 of the Indian
Evidence Act.
36. PW-6 Bashil Champia also stated in his examination-in-chief that the
accused confessed his guilt before the public and thereafter, police was
called and he was handed over to the police.
However, in cross-examination, he states that when accused
confessed his guilt, the police personnel were also present. PW-5 and PW-
6 have not stated in their deposition that the appellant made two
confessions regarding his guilt, one before the public when police was not
present and another before the public when police was also present.
37. PW-9 Atanu Seal, the Welfare Officer of the Tae Garden, testified
that upon being asked by the police, the appellant admitted before him
and others that he had killed his wife. PW-9 further testifies that on being
asked by the SDPO Bhergaon, who was a police official, the appellant
admitted that he had killed his wife by giving a blow by dao and left the
dao in the place. Therefore, the testimony of PW-9 regarding the
extrajudicial confession is also hit by section 26.
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38. The main investigating officer of the case is PW-11 S.I. Ibrahim
Khalil Ullah. Interestingly, he has not stated in his deposition about the
appellant making any extrajudicial confession. In support of his
contentions, the learned counsel for the appellant has relied on the
decision of Agnoo Nagesia (supra) with regard to the restrictions
imposed by section 26 of the Indian Evidence Act regarding admissibility
of a confession made before police, made in the presence of police or in
the custody of the police, unless it is made in the immediate presence of
the Magistrate.
39. Similarly, he has also relied upon the decision in Perumal Raja @
Perumal (supra) on the same subject. In Gangula Satyamurthy, the
Hon'ble Apex Court with regard to section 26 of the Indian Evidence Act
has stated that the term 'custody' within the meaning of section 26 does
not necessarily mean arrest custody. It has to be understood in a
pragmatic sense. The relevant para 20 of the decision may be reproduced
herein below -
"20. In Pulukuri Kottaya v. King Emperor, AIR 1947 PC 67, the Privy
Council held that the fact discovered embraces the place from which the
physical object is produced and the knowledge of the accused as to this,
and the information given, must distinctly relate to this fact."
40. It is well settled that an extrajudicial confession is an admissible
evidence and can be used for a conviction, though it is inherently a weak
kind of evidence and corroboration would be a rule of prudence. In this
regard, para 5 of Pawan Kumar Chaurasia (supra) relied upon by the
appellant side may be reproduced herein below -
"5. As far as extra-judicial confession is concerned, the law is well settled.
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Generally, it is a weak piece of evidence. However, a conviction can be
sustained on the basis of extra-judicial confession provided that the
confession is proved to be voluntary and truthful. It should be free of any
inducement. The evidentiary value of such confession also depends on
the person to whom it is made. Going by the natural course of human
conduct, normally, a person would confide about a crime committed by
him only with such a person in whom he has implicit faith. Normally, a
person would not make a confession to someone who is totally a stranger
to him. Moreover, the Court has to be satisfied with the reliability of the
confession keeping in view the circumstances in which it is made. As a
matter of rule, corroboration is not required. However, if an extra-judicial
confession is corroborated by other evidence on record, it acquires more
credibility."
41. There is no quarrel with the proposition that the extrajudicial
confession if found trustworthy can be used for conviction, though
corroboration is a rule of prudence. However, in the instant case, we find
that all the extrajudicial confessions revealed from the testimony of PW-2,
PW-4, PW-5, PW-6 and PW-9 were found to be made in the presence of
the police and therefore, hit by the restriction imposed under section 26 of
the Indian Evidence Act. The learned trial court perhaps erred that in
accepting the extrajudicial confessions on the ground that the appellant
had made confession before the public when police had not yet come and
he again made a confession when police was present.
42. Such a determination in our considered do not emerge from an
appreciation of the testimony pertaining to the extrajudicial confessions.
Therefore, though several witnesses have stated about an extrajudicial
confession made by the appellant, but in view of the infirmities thereon
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vis-a-vis section 26 of the Evidence Act, the said extrajudicial confessions
have to be discarded.
43. The learned trial court has held that one of the circumstances
proved against the appellant was the recovery of the weapon of offence.
In this regard, PW-2, Dominic Orang, the informant, stated in his
examination-in-chief that the appellant handed over the dao to the police
with which he committed the murder of his wife and police seized the dao,
though PW-2 did not sign on the seizure list as a witness.
In cross-examination, he further clarified the same, stating that the
accused led the police where he kept the offending dao hiding and shown
the same to the police, which seized the dao. However, from his
testimony, we find that PW-2 has not thrown light on the place from
where such dao was shown by the accused to the police and thereafter
seized by the police.
44. PW-3, Robin Gowala, has also stated about seizure of the dao by the
police and he has stated in his deposition that police seized a dao by the
side of the dead body, but again PW-3 also is not a seizure witness.
In his examination-in-chief where he stated the aforesaid, PW-3 has
not thrown light as to whether the seizure by the police of the dao from
the side of the dead body or upon showing by the accused.
45. PW-6, Bashil Champia, has also stated about showing of the dao by
the appellant. He testified that after the incident, they searched for the
accused and thereafter, the accused arrived at the place and on being
questioned by villagers, he brought out the dao by which he had given
stab injury on the neck of his wife. He has not elaborated further
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regarding the place from where the said dao was produced by the
accused, nor did he throw light on whether the dao was seized by the
police. Though PW-8, an employee of the TE, namely Kanak Chandra
Sarma, has stated about recovery of the dao, but he has indicated a
different place of recovery. He stated that the police came and recovered
one dao left on the roadside in front of his quarter of the Tea Estate and
that police seized the dao in his presence and obtained his signature as a
witness.
46. PW-8 proved the seizure list as Exhibit 3 and his signature thereon
as Exhibit 3(1). He also proved as Material Exhibit 1, the dao.
47. One clarification emerges from his cross-examination as much as he
stated that the police showed him the dao after recovery. From the
testimony of PW-8, it does not emerge that the dao was seized upon
being shown by the accused and the place of recovery of the dao is stated
to be a roadside in front of his quarter. Though in cross-examination, it
has emerged that the dao was shown to him after the recovery.
48. In this context, the learned trial court has held that the testimony of
PW-8 cannot be taken to constitute evidence regarding the place from
where the dao was seized because the said weapon was shown to him
after his recovery.
49. Similarly, Atanu Seal, the Welfare Officer who testified as PW-9
during the trial stated that the accused led the police to the place where
the dao was kept and that the dao was left kept on the roadside in front
of the quarter of Kanak Sharma, PW-8. PW-9 also signed on the seizure
list Exhibit-3 and proved his signature there on as Exhibit-3(1) and the dao
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as Material Exhibit-1.
In cross-examination, he stated that he is not sure whether the dao
shown to him during deposition was the dao which was recovered on that
day.
50. Interestingly, the main Investigating Officer as PW-11 in his
deposition has stated about seizure of the dao and also he has proved it
as Material Exhibit-1 during his deposition. But in his entire testimony, he
is silent about whether the dao was seized upon being shown by the
appellant.
51. With regard to the testimony of PW-9, he stated that he went to the
place of occurrence at 9 PM and the dao was recovered around after 1 AM
of midnight. In his cross-examination, it is also stated that when he went
to the place of occurrence at about 9 PM, the house was burned.
52. Thus, with regard to the recovery of the dao also, we find that while
PW-2 stated about accused handing over the dao to the police by leading
to the place where he had kept the dao in hiding, but did not throw light
on what that place was.
53. PW-3 stated about the police seizing the dao from the side of the
dead body but not throwing light as to whether it was so recovered upon
being shown by the accused.
54. PW-6 stated about the accused bringing out the dao upon being
questioned by villagers. But his testimony is silent as to whether he led
the police regarding recovery of the dao and also silent about the place
from where the dao was seized. PW-8 stated about seizure of the dao
from roadside near his quarter, in front of his quarter and is silent about
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whether the same was shown by the appellant. PW-9 on the other hand,
though, stated about seizure of the dao from the roadside as stated by
PW-8, but he stated that it was seized upon the accused leading the police
to that place where the dao was left. Moreover, as already stated, it is
surprising that the PW-11, the I/O has not mentioned about seizure of the
dao upon being shown by the accused though he has mentioned about
only seizure of the dao.
55. Thus, with regard to the seizure of the dao, the testimony of the
witnesses is not very consistent regarding the place from where it was
actually seized. There are also differences between the testimony of the
witnesses as to whether the dao was simply seized by police from the side
of dead body or whether it was shown by the appellant upon being asked
by the villagers or it was recovered upon the appellant leading the police
to the said place.
In cross-examination of the I/O, PW-11, it is admitted that the
seized dao was not sent for forensic examination even though there was a
blood stain on the dao. This is a significant infirmity in the investigation of
the case. In this context, the decision of Motilal Gorh @ Lity and Anr.
(supra) a Division Bench judgment of this Court cited by the appellant side
may be noted. In that decision, in Para 15, it was held that in the absence
of chemical and serological test of the so-called weapon of offence, mere
recovery of the weapon which was dao in that case may be of no use to
the prosecution as there was no evidence to connect the dao with the
commission of the offence. Similar is the situation in the instant case, as
there is inadequate evidence to connect the seized dao as the weapon of
offence. Though the seizure of the dao has been proved by the
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prosecution, but there is discrepancy regarding the place from where it
was seized and also whether it was indeed seized upon being shown by
the accused as the said aspect is completely missing in the testimony of
the I/O, which is a significant omission.
56. Upon perusal the aforesaid evidence on record, we find that from
the testimony of PW-2, it emerges that he went to the place of occurrence
around 4 PM and soon thereafter, the appellant reached there. It has
emerged from the testimony of PW-3 that after the incident of assaulting
his wife, the appellant set fire to his house and fled away. But when police
came, he emerged on his own. And then police took him under custody.
57. From the testimony of PW-4 also, it emerges that after the incident,
the appellant fled away but around 5 AM when people started gathering,
he came back. In cross-examination, he reiterated that the accused came
back to the house around 5 AM.
58. PW-6 has also stated that upon reaching the place of occurrence,
they searched for the accused and the accused arrived at that place. From
the testimony of these witnesses, it is proved that after the incident, the
accused had gone missing and thereafter, he came back to the house on
his own, whereupon he was apprehended by the police. On the basis of
the aforesaid evidence as discussed and appreciated above, we are of the
view that the following points emerge :-
(i) The death of the appellant's wife in the house in which she and
the appellant were living, though it was the house of PW-2.
However, it is convincingly proved that at that time, PW-2 had
allowed the appellant and his wife to stay there. It has also emerged
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that the house had two parts.
(ii) The death of the appellant's wife was a homicidal death due to a
cut injury on her neck, which was an injury of a significant nature as
revealed by the medical evidence.
(iii) Though, several witnesses have stated about the appellant
making extrajudicial confessions, about his involvement in the
incident, but all these extrajudicial confessions are hit by Section 26
Indian Evidence Act having been made in the presence of the police.
(iv) The seizure of the dao has been proved by the prosecution
evidence, but there is no evidence, including forensic evidence to
prove that the same dao was indeed the weapon of offence.
(v) For the discrepancies in the evidence, it is not convincingly
proved as to the place from where the dao was seized and as to
whether the dao was shown by the accused to the appellant or
whether he led the police to the place where the dao was hidden
and it was seized from there. As per the evidence of PW-8 and PW-
9, it was seized from the roadside and if that is the case, then it
would not be a case of leading to discovery as roadside is a public
place where such a dao could be visible to others.
(vi) The evidence does prove that after the incident, the accused
went missing and thereafter, emerged when people and police
started gathering.
(vii) With regard to the timing of the incident, while some of the
witnesses have stated about the incident taking place around 3 AM
in the wee hours of 22-01-2019, but two of the witnesses, about
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including the informant have indicated about the incident having
taken place in the evening. From the testimony of PW-9, it emerges
that whom he went to the place of occurrence at around 9 PM, he
saw the house burning and that the dao was seized around 1 AM,
which does not really tally with the narration regarding the time of
incident and the gathering of people followed by the other events
starting from around 3 AM.
59. From the evidence on record, the main incriminating materials which
have been proved against the appellant are as follows - (i) Death of the
appellant's wife in the house where she was staying with the appellant,
(ii) homicidal cut injury on the neck of the wife, deceased, (iii) recovery of
a dao from in and around the place of occurrence, (iv) the house of the
appellant being found burning after the incident, (v) appellant going
missing soon after the incident and then emerging.
60. In the context of these proved circumstances, now we are
confronted with the question, as contended by the prosecution, as to
whether the provisions of section 106 of the Indian Evidence Act can be
invoked to attribute guilt to the appellant.
61. Before proceeding further, section 106 of the Indian Evidence Act
may be reproduced herein below -
106. Burden of proving fact especially within knowledge. - When any fact is
especially within the knowledge of any person, the burden of proving that fact is
upon him.
62. The appellant's side has also referred to a decision in this regard
rendered in the case of Anees (supra) and drawn attention to para 38
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thereof. The same relevant para 38 as well as 39 which are relevant on
the subject matter may be reproduced herein below -
38. The aforesaid decision of Shambhu Nath (supra) has been referred to
and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725,
wherein this Court observed as under:
"22. Thus, Section 106 of the Evidence Act will apply to those cases
where the prosecution has succeeded in establishing the facts from
which a reasonable inference can be drawn regarding the existence
of certain other facts which are within the special knowledge of the
accused. When the accused fails to offer proper explanation about
the existence of said other facts, the court can always draw an
appropriate inference.
23. When a case is resting on circumstantial evidence, if the accused
fails to offer a reasonable explanation in discharge of burden placed
on him by virtue of Section 106 of the Evidence Act, such a failure
may provide an additional link to the chain of circumstances. In a
case governed by circumstantial evidence, if the chain of
circumstances which is required to be established by the prosecution
is not established, the failure of the accused to discharge the burden
under Section 106 of the Evidence Act is not relevant at all. When
the chain is not complete, falsity of the defence is no ground to
convict the accused.
39. In Tulshiram Sahadu Suryawanshi and Anr. v. State of Maharashtra,
(2012) 10 SCC 373, this Court observed as under:
"23. It is settled law that presumption of fact is a rule in law of
evidence that a fact otherwise doubtful may be inferred from certain
other proved facts. When inferring the existence of a fact from other
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set of proved facts, the court exercises a process of reasoning and
reaches a logical conclusion as the most probable position. The
above position is strengthened in view of Section 114 of the
Evidence Act, 1872. It empowers the court to presume the existence
of any fact which it thinks likely to have happened. In that process,
the courts shall have regard to the common course of natural events,
human conduct, etc. in addition to the facts of the case. In these
circumstances, the principles embodied in Section 106 of the
Evidence Act can also be utilised. We make it clear that this section
is not intended to relieve the prosecution of its burden to prove the
guilt of the accused beyond reasonable doubt, but it would apply to
cases where the prosecution has succeeded in proving facts from
which a reasonable inference can be drawn regarding the existence
of certain other facts, unless the accused by virtue of his special
knowledge regarding such facts, failed to offer any explanation
which might drive the court to draw a different inference. It is useful
to quote the following observation in State of W.B. v. Mir Mohammad
Omar and Ors. [(2000) 8 SCC 382: 2000 SCC (Cri) 1516] : (SCC p.
393, para 38)
"38. Vivian Bose, J., had observed that Section 106 of the
Evidence Act is designed to meet certain exceptional cases in
which it would be impossible for the prosecution to establish
certain facts which are particularly within the knowledge of the
accused. In Shambhu Nath Mehra v. The State of Ajmer [AIR
1956 SC 404: 1956 Cri LJ 794] the learned Judge has stated the
legal principle thus :
11. This lays down the general rule that in a criminal case
the burden of proof is on the prosecution and Section 106
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is certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate
disproportionately difficult, for the prosecution to establish
facts which are "especially" within the knowledge of the
accused and which he could prove without difficulty or
inconvenience.
The word "especially" stresses that. It means facts that are
pre-eminently or exceptionally within his knowledge.'''
63. In his examination, under Section 313 CrPC, the appellant has not
given any explanation as to how his wife expired in the house where they
were living. In fact, as an answer to question No. 12, which was a generic
question regarding the occurrence, he stated that he works as a labour
and on the day of the incident he had gone out for work at 8 AM and
came back from work at 6 PM in the evening and he was apprehended by
the police at 8 PM and that he does not know who killed his wife, Rejina
Munda.
64. This explanation does not appear to be very convincing in view of
what has emerged from the prosecution evidence because from the
testimony of PW-3, PW-4, PW-5, it emerges that the incident took place
around 3 AM in the wee hours and going by the statement of the
appellant, he was present in the house at the time. From the testimony of
PW-4, it has also emerged that initially the appellant fled away but when
people started gathering, he emerged at around 5 AM. This has been
reiterated by PW-4 in his cross-examination.
65. This also conflicts with the statement of the accused that he went
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out at 8 AM and came back at 6 PM and trying to indicate that he does not
know how the incident took place and also trying to indicate that the
incident took place when he was absent from the house. But the
testimony of PW-3, PW-4 and PW-5 indicates that he was present in the
area when the incident took place.
66. However, it is true that from the testimony of PW-2, it is indicative of
the incident having taken place in the evening because he stated about
going to the place of occurrence after 4 PM and finding the house burning.
Similarly, PW-6 has stated about going to the place of occurrence after
7.30 PM and finding the house engulfed by fire. PW-9 has also stated
about going to the place at 9 PM and finding the house burning and
recovery of the dao after 1 AM in the night. Therefore, if we go by the
testimony of PW-3, 4 and 5, the accused was present when the incident
took place. And if we go by the testimony of PW-2, PW-6 and PW-9,
indicating about the incident having taken place in the evening, the same
may be more compatible with the explanation of the accused that he was
absent during the day and came back at 6 PM and that he does not know
who killed his wife.
67. It is clear from the decision in Anees (supra) that section 106
Indian Evidence Act does not relieve the prosecution of the primary
burden of proving the case beyond reasonable doubt. Only in the event of
the prosecution, proving the basic facts against the accused that the
burden could shift to the accused to offer a cogent and plausible
explanation about something which could be within his exclusive
knowledge. Section 106 only relieves the prosecution of proving
something which should be extremely difficult or almost impossible for the
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prosecution to prove as it is something which is within the exclusive
knowledge of the accused.
68. Section 106 Indian Evidence Act is not meant to relieve the basic
burden of prosecution. In the instant case, it is true that the appellant has
not offered a proper explanation regarding the death of his wife in the
house in which both of them were staying. At the same time, his
explanation or at least a part of it has also been found to be unconvincing
or perhaps false. Therefore, it remains to be determined as to whether the
same can be taken as a failure of the appellant to discharge the burden
under section 106 Evidence Act - so as to attribute guilt to him. To do so,
we have to see as to whether the prosecution has been able to prove the
basic incriminating circumstances pointing towards the guilt of the
appellant as the instant case is based on circumstantial evidence.
69. In terms of the principles laid down in Anees (Supra), it is clear that
before the provisions of Section 106 of the Evidence Act are invoked
against the accused, the basic chain of circumstances against the accused
has to be proved in such a manner that they lead to a reasonably definite
inference regarding his guilt - unless the same is rebutted by him by an
explanation within his special knowledge. Thus, only in such a situation,
his failure to provide a cogent explanation can be held against him and the
provisions under Section 106 can be invoked to attribute guilt to him. The
provisions of Section 106 are not meant to relieve the prosecution from
proving the chain of circumstances and discharge its basic burden with
regard to proof by circumstantial evidence. It is only meant to give some
relief to the prosecution with regard to matters which are within the
exclusive knowledge of the accused and may be impossible or extremely
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difficult for the prosecution to prove.
70. Coming back to the facts of the instant case, it is true that the
incident took place in the house of the deceased and accused by a
homicidal significant cut injury on her neck, which as per the medical
opinion is compatible with assault by a sharp weapon like a dao. A dao
was also recovered from in and around the place of occurrence though the
investigation or the prosecution could not link the dao as the weapon of
offence or that it was seized as a weapon of offence.
71. It is also not proved convincingly that it was seized upon being
shown by the accused as some of the witnesses including the I/O has not
stated about the dao being seized upon showing by the accused. The fire
on the house, as also the disappearance of the accused for some time has
been proved by the testimony of some of the witnesses.
72. However, some of the witnesses as discussed above have also stated
about finding the burning house upon going there in the evening and
going by their testimony the incident may not have taken place in the wee
hours around 3.00 a.m. when the accused was likely present in the house.
If the incident had indeed taken place in the evening, it could indicate
some relevance of his explanation that he went out in the morning around
8.00 a.m. and came back in the evening around 6 pm and thereafter he
was apprehended by the police. If the testimony of some of the witnesses
about going to the place of occurrence around 7.00-7.30 pm and finding
the house burning is accepted as correct, then it cannot altogether rule
out the hypothesis of the incident having taken place during the day or
during the time when the accused was purportedly not present in the
house as stated by his explanation under Section 313 Cr.P.C.
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73. Therefore, we are constrained to hold that an alternative hypothesis
do emerge and the chain of circumstances on the basis of the aforesaid
proved circumstances cannot be taken to be a complete chain leading to a
reasonably definitive inference of guilt of the accused.
74. Further, the explanation of the accused under 313 Cr.P.C. could be
taken to be a plausible explanation as well, with regard to facts and
circumstances, especially within his knowledge. If that be so, then the test
of Section 106 Evidence Act would have to be taken to be passed in favour
of the accused, rather than that of the prosecution.
75. There is no doubt that there is very strong suspicion upon the
appellant, but there is a well-settled principle of criminal jurisprudence
that suspicion, howsoever strong, is not a substitute for proof.
76. Consequently, in the entire facts and circumstances on the basis of
the evidence on record and in backdrop of the above discussion, we come
to the considered finding that the guilt of the convict appellant has not
been proved beyond reasonable doubt as required in a criminal trial.
77. Accordingly, the appellant is required to be given benefit of doubt
and acquitted. Resultantly, this appeal succeeds and the impugned
judgment dated 07.06.2022 passed by the learned Addl. Sessions Judge,
Udalguri in Sessions Case No. 70 of 2019 is hereby set aside.
78. The convict appellant shall be set at liberty forthwith, if not wanted
in any other case.
79. The criminal appeal stands allowed and disposed of.
80. Mr. A. Tewari, learned Amicus Curiae for his valuable assistance shall
be paid the fixed amount of remuneration in this regard by the Assam
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State Legal Services Authority.
81. Original TCR, if any, be send back forthwith.
JUDGE JUDGE
Comparing Assistant
